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Opinion Contributor

What the drone debate obscures

Drone strikes shouldn't be the president's only counterterrorism tool, the authors say.

By ANDREW BURT and SAM ADELSBERG | 3/10/13 9:03 PM EDT

The biggest news to come out of the U.S. drone program in recent weeks went unnoticed. In late January, the State Department reassigned Ambassador Daniel Fried, the top diplomat tasked with closing the prison facility at Guantánamo Bay, to another job, announcing that no other official will replace him. This marked the final capitulation in the Obama administration’s attempts to close Guantánamo Bay and its ultimate failure to find a workable framework for detaining terrorist suspects operating abroad.

As the technological ease of drone strikes has been increasing — killing suspected terrorists with video-game-like effortlessness — so, too, have the legal difficulties of detaining terrorism suspects, to the point that the Obama administration has effectively given up attempting to detain terrorism suspects at all. And this has stacked the cards in favor of drone strikes. Faced with quickly and easily killing a suspected terrorist through a drone strike on one hand, or risking American lives to detain the same suspect — under enormous levels of legal uncertainty, in addition to significant diplomatic and operational costs — it makes sense that the Obama administration would so often choose to employ drones, as indeed it has.

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And so, to those critical of the U.S. drone program, we offer a word of advice: It is not drones you should be concentrating on but Congress’s refusal to allow the administration more flexibility in detaining suspects. Ultimately, the most effective way to decrease the administration’s reliance on drones is to offer it another choice, something that Congress has continually failed to do. A good place to start is by removing the legal restrictions preventing the administration from closing the detention facility at Guantánamo and giving the administration a freer hand in the detention and transfer of terrorism suspects captured abroad.

But first some background: The legal issues surrounding the detention of terrorism suspects have plagued the U.S. since the early days of the war in Afghanistan. Indeed, Gen. Richard Myers, the former chairman of the Joint Chiefs of Staff, told one of us during a 2009 interview that among the greatest problems of the wars in Iraq and Afghanistan was the failure to determine clear-cut legal standards for detainees. “What do you do with these people you scoop up off the battlefield?” he asked. “How do you handle them? What are their rights?”

As the Obama administration has attempted to answer these questions, Congress has consistently stepped in its way. In January 2011, Congress put significant limitations on the administration’s ability to transfer suspected terrorists from Guantánamo. The following year, Congress passed stepped-up restrictions yet again, preventing the administration from spending funds for an alternative site to house detainees in the United States and requiring mandatory military detention for a large class of suspected terrorists. The latest setback came in January of this year, when Congress ratcheted up transfer restrictions for detainees, including many being held in Afghanistan.